Testatrix left surviving her hus NEGLIGENCE. EVIDENCE. band and an only daughter, the N.Y. SUPREME COURT. GENERAL said Minna, now Mrs. Van Zandt, the appellant. The legacies were all paid, and Mrs. Van Zandt was in possession of the farm when the premises were taken and the money paid. M. H. McMath, for applt. C. J. Bissell, for respts. Held, That by the terms of the will Minna Van Zandt took only a life estate in the lands of testatrix. Therefore she can only enjoy the use of the lands or the money, which is a substitute for the land acquired by the railroad company. 13 N. Y., 285. There was only a conditional fee in Minna upon which there is a valid executory devise over upon the failure of the condition. If Mrs. Van Zandt shall die without leaving her surviving issue the land must pass, according to the terms of the will, to the persons next entitled by the terms of the will. 26 Barb., 117. We think the words carrying the lands over in the event of the death of Minna without issue are clear and express, and should receive effect. They cut down the estate, which otherwise would be given to her. 81 N. Y., 359. Construing all the language language found in the will, it is evident that testatrix did not intend to devise a fee absolute to her daughter. 17 Hun, 217. Order affirmed, with $10 costs and disbursements payable out of the income of the fund. Opinion by Hardin, J.; Smith, P. J., and Barker, J., concur. TERM. FIRST DEPT. Frederick P. Reed, respt., v. The Mayor, &c., of the city of New York, applt. Decided Dec. 21, 1883. In an action against the Mayor, &c., of New York city to enforce a claim for damages for negligence in allowing snow and ice to accumulate and remain on the sidewalk, the plaintiff, having fixed the amount of his claim in his preliminary demand to the comptroller, will not at the trial be allowed to increase his demand by amendment of complaint. In such an action evidence of the length and area of the sidewalks of the city under its care and of ordinances of the common council requiring owners of premises to clean sidewalks in front of their premises, and affixing penalty for failure, and of the obstructions the city has to meet with in its supervisory care of the streets, is competent. Appeal from judgment entered on verdict. Action to recover damages for defendant's negligence in allowing ice and snow to accumulate and remain on the sidewalk, by reason whereof plaintiff suffered great injury. At the trial the court permitted plaintiff to increase the amount of his demand for judg ment from $5,000 to $10,000 against objection. Charles Blandy, for applt. Held, That the court should not have permitted plaintiff to increase his claim for damages by amendment; that he should have been required to stand upon his claim as he had previously presented it to the comptroller under § 105, Chap. 335, Laws of 1873; 26 Hun, 120; unreported opinion of Daly, ASSAULT. Ch. J., in Harriman v. The Mayor. But inasmuch as the judgment N. Y. SUPREME COURT. GENERAL was only for $5,000 and defendant cannot be said to have been prejudiced by the amendment de fendant can have no benefit from its exception. Held further, That upon the question of defendant's carelessness it was error to exclude evidence as to the length and area of the sidewalks of which defendant had supervision; it was also error to exclude the ordinance of the city requiring owners of premises to clean the walks in front of their premises. The court also erred in its refusal to charge the following request: "What is a reasonable time, and what is a reasonably safe condition of the sidewalk is for the jury to determine, and must be determined from a reasonable standpoint, and in view of the difficulties and obstructions the city has at all times to meet, and also in view of the extended territory of streets, roads and sidewalks, and the fact that in some sections of the city public travel required more speedy attention than others, and the possible large number of similar dangers requiring attention, and also in view of the facilities at its disposal for removing obstructions." Defendant was entitled to the request without modification. Judgment reversed, new trial ordered, costs to abide event. Opinion by Daniels, J.; Davis, P. J., concurs. TERM. THIRD DEPT. The People, respts., v. William H. Hale, applt. Decided Nov., 1883. To constitute the crime of assault and battery the assault must have been made with a criminal or vicious intent. A verdict that the prisoner was guilty of an assault, but not guilty of a criminal assault or intent to injure is practically a verdict of acquittal and it is error for the court to refuse to entertain it. Appeal from judgment of Court of Sessions, affirming judgment of police court convicting appellant of the crime of assault, and sentencing him to pay a fine of $30 or in default thereof be committed to jail at hard labor for sixty days. The act complained of was the taking hold of the arm of a young lady, Miss D., while she was walking in the street with others. Defendant and Miss D. were acquaintances and at the time held friendly relations with each other. The complaint was not made until four months afterward. Miss D. and one C., who was walking with her and who was not on friendly terms with defendant, testified that defendant violently seized hold of her arm, whereas two others who were present testified only that they saw him take hold of her arm. Defendant testified that "it was not with the intent to assault or insult her." The jury returned a verdict "that while we find the prisoner guilty of assault, we do not deem be committed with criminal intent. An assault without such intent does not constitute a crime. There must be vicious intention and criminal design. See 1 Hill, 351. him guilty of a criminal assault or intent to injure." The court refused to entertain the verdict and directed the jury to retire, which they accordingly did and returned with a verdict of guilty and a recommendation to mercy, where upon the judgment in question was pronounced. William H. Hale, applt. in act, did not involve any element person. Lewis E. Griffith, for respts. Held, Error; that the first verdict was in legal effect a verdict of acquittal and should have been accepted as final. The jury had a right to conclude, especially in view of the former friendly relations which had existed between defendant and Miss D., that defendant simply took hold of her arm with "no intent to assault or insult her," and the jury did so find that the taking hold of Miss D.'s arm was not a "criminal assault" or with "intent to injure." The jury found defendant not guilty of a criminal assault; that is, they found that defendant took hold of Miss D.'s arm, but with no criminal intent. This was good as a special verdict, which need not be in any particular form, so be it that it presents intelligently the facts found by the jury. Code Civ. Pro., 440. It was not an § imperfect or defective verdict, but covered the entire case; nor did it contain any suggestion of mistake. People v. Bush, 3 Park, 552; Nelson v. People, 5 id., 39, and People v. Graves, id., 134, do not apply. To make the act criminal it must The jury found and so rendered their verdict that defendant was not guilty in this regard; that the act complained of was not a criminal essential to crime. They had a right to find, if they deemed the facts proved to justify the finding, that the taking hold of a person's arm in the confidence of existing friendship, trusting to a license acquired by a supposed mutual kind feeling, doing no injury, with no intent to do a wrong by insult or otherwise, is not a criminal act; such an act is an innocent one, in the sense that it does not constitute a crime. Judgment reversed and defendant discharged. Opinion by Bockes, J.; Learned, P. J., concurs; Boardman, J., concurs in result. RAILROADS. FENCES. N. Y.,L. E. & W. RR. Co., respt. Decided Sept., 1883. The liability of a railroad company for damages to cattle, etc., resulting from defective fences is not limited to injuries caused by its agents or engines, but attaches to all cases where cattle, etc., escape on the track through a defective fence, irrespective of the manner in which they receive injury. Appeal from order setting aside verdict and granting new trial. Action to recover damages for sions on the railroad track which the loss of plaintiff's horse. It appeared that the horse passed upon defendant's track where a length of fence was down, and ran on to a bridge, where its feet went between the timbers, its legs were broken and it was necessarily destroyed. The court directed a verdict for plaintiff, but afterwards set it aside on motion on the minutes and granted a new trial. T. J. & J. W. Lyon, for applt. L. E. Carr, for respt. Held, Error; that this case should be held to be within the statute. The statute lays an injunction on railroad corporations to erect and maintain fences on the sides of their road in clear and unqualified terms, and it has been steadily maintained by the courts of this state that the duty so imposed was public and that the enactment of the statute was induced by public considerations. The purpose of the law was to protect the traveling public and the owners of domestic animals, and it has received a wide and liberal construction. After imposing this public duty on these corporations the statute proceeds to declare that for a failure of compliance they shall be liable for all damages which shall be done by their agents or engines to cattle and horses. Does this measure their liability or does it simply declare some of the consequences of their omission? Cer tainly no reason exists for such limitation of liability. If this law was enacted to prevent intru might result in loss of life to persons traveling on the railroad their liability should attach in all cases where cattle escape on the track through defective tences irrespective of the manner in which they receive injury. No negative words are employed to show the intention of the legislature that the corporation should be liable for injuries in no other cases than those enumerated in the statute and if it had been intended that their liability should have that extent and no more some indication of that kind would be found in the language of the law. In any view the beneficent purpose of this statute will be best accomplished by holding this and similar cases to be within its scope and meaning. Any other construction would be too narrow and tend to deprive the law of its great useful ness. Again, if the object of this law was in part to protect the owners of domestic animals along the lines of railroads why should such protection be restricted to cases where they are destroyed in a certain way? If it be answered that it is so nominated in the law, the reply is that the statute does not profess to enumerate all the instances of liability resulting from its violation. If this horse had been killed by a car running by force of gravity on a descending grade, detached from an engine, the corporation would be liable, and yet the case would not be within the words of the statute. tion for new trial denied and judgment ordered on verdict. Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., con Order reversed, with costs; mo- | closure of a second mortgage, and became vested in Anna C., who was then the owner; but this fact was not known to plaintiff, defendant or the agents, and no representation or request of any kind respecting the property or policy was made to defendant agents by any person. cur. FIRE INSURANCE. MISTAKE. The Poughkeepsie Savings Bk., respt., v. The Manhattan Fire Ins. Co. et al., applts. Decided Sept., 1883. Where an error in the name of the owner of the property is caused by the mistake of the insurance agent and not through any fraud or misrepresentation of the assured there is no breach of warranty, and the insurer is liable on the contract actually made. or the The property was destroyed by fire, June 25, 1881, and the loss has been adjusted at $930. The trial court found that the policy constituted an agreement by defendant to insure the house described, and that the mistake made by its agents in naming the owner was not caused by any fraud or misrepresentation; that by the payment and acceptance of the premiums the owner acquired the right to the benefit of Appeal from judgment for plain- the insurance and that the policy tiff. Action on a policy of fire insurance. One C., in 1869, executed a bond and mortgage for $800, which came to plaintiff by regular assignment and which remains unpaid. C. procured from the Connecticut. Ins. Co. a policy on the premises to plaintiff as collateral to the mortgage, and plaintiff procured renewals thereof through through the agents at Kingston until 1879. At that time the agents were the agents of defendant, and had ceased to be agents of the Connecticut Co., and forwarded to plaintiff the policy in suit, similar to the former one, and C. paid the premium. Previous to the issuance of this policy the title of the property had been changed by the fore was valid as to plaintiff and the owner and gave judgment for plaintiff. Butler, Stillman & Hubbard, for applts. R. E. Taylor, for respt. Held, No error. The policy was delivered and the premiums received with full purpose of insuring the building and there was no fraud or misrepresentation. Clearly the error of the agents cannot be set up by the company as a breach of warranty, and the policy of insurance should be applied to the subject and interest intended to be covered. 19 N. Y., 182. The just rule on the subject now is that where a mistake is the fault of the agent the insurer is bound to respond on the contract actually made. 36 N. Y., 550. |